Working with Children Bill: legislation remains flawed

Hansard: 20 September 2007 ASSEMBLY

Mr CLARK (Box Hill) — The Working with Children Amendment Bill 2007 is a bill that fixes a range of errors, omissions and oversights in the Working with Children Act 2005. It includes four new offences defined as relevant offences which are to be considered in assessing applications by persons for approval to work with children. Those offences include the offence of loitering near schools and other places, and the offence of stalking where the victim is a child. Those are included in the legislation as category 2 offences.

Category 2 offences are ones where there is a general expectation that an authorisation will be refused but the secretary of the department can still issue an authorisation if he or she considers it appropriate. The other two offences being included are the offence of causing injury intentionally or recklessly and the offence of obscene exposure. They are being included in the legislation as category 3 offences, where authorisation must be issued unless it is considered inappropriate to do so. How it is that these offences, particularly obscene exposure, are put in category 3, may be questioned. The government’s justification is that obscene exposure may cover a wide range of possible circumstances. One would certainly hope that the secretary will be very careful in the way she or he exercises their discretion in relation to those cases.

The bill also provides the secretary with a broad exceptional circumstances discretion to refuse an authorisation to work with children based on offences other than offences that are defined as relevant offences for the purposes of the legislation. That discretion will apply where there is considered to be an unjustifiable risk to the physical or sexual safety of children.

The bill also reclassifies two carnal knowledge offences as category 2 offences, whereas previously they have been classified as category 1, where as far as the secretary is concerned no authorisation can be issued. The government’s justification is, in the Attorney-General’s words, that some of the carnal knowledge offences may have involved boyfriend and girlfriend circumstances.

The bill also provides for the Victorian Civil and Administrative Tribunal to make interim orders pending the final determination of a matter where there is an appeal or application to VCAT. In addition the bill provides a defence to the offences of engaging in child-related work without an assessment notice and engaging a person without an assessment notice where VCAT has issued a stay order in relation to a proceeding before it.

The principal act was enacted in 2005. At the time the legislation was debated in this house the Liberal Party expressed a range of concerns about the legislation. We were concerned about its bureaucratic nature, we were concerned about how effective it would be in practice and we were concerned about the lack of independent supervision and the fact that many discretions under the legislation were given to the Secretary of the Department of Justice rather than to an independent commissioner.

During the course of debate unfavourable comparisons were drawn between the then proposed Victorian regime and the regime that had been enacted in Queensland. Comparisons were also made with the regime that had been enacted in New South Wales.

There is a serious problem of potential and actual abuse of vulnerable people in the community by carers, particularly, in this context, the abuse of children. The point also needs to be made that unfortunate instances are coming to light where there has been abuse of the elderly and abuse of people with disabilities by those in whose care they are. Some of the examples that have come to light are quite horrific. So the principle of putting in place mechanisms to protect children and other vulnerable people is entirely appropriate, and the use of police checks as part of those protective mechanisms can make good sense.

However, the way in which these protections have been implemented in detail is a cause of continuing concern to the opposition, in relation to both the bureaucratic and cumbersome mechanisms and procedures that have been put in place and also the gaps that exist in the regulatory framework in terms of providing appropriate protection for vulnerable people, particularly for children.

When one looks at the documentation that is available on various websites, this complexity can be seen. On the police website there is a form entitled ‘Consent to check and release national police record’. As far as one can tell from the information on the website and the nature of the form, this is a general purpose document that is to be completed by the applicant and submitted to the police force. That document will trigger a check and release of police records for a wide range of purposes.

Section 3 of the form requires the applicant to indicate whether the purpose of the check is for employment, voluntary work or occupation-related licensing and to specify the type of position to which the check relates or other purposes for which the check is sought. There is also provision to specify who is to be the recipient of the check results and a notification that those check results will be sent directly to the organisation or the person specified.

However, there are other forms that are available in various contexts on various government websites, and I refer in particular to a document entitled ‘Safety screening: police check and proof of identity’ that is issued by the Department of Human Services. It is described as a ‘consent to check and release national criminal history record and proof of identity’.

It says that as part of its employment safety screening policy, the Department of Human Services requires all competitive applicants for positions within the department to undergo a national criminal history record check as part of the application and assessment process. It mentions contexts of employment: ‘for the purpose of working with children, elderly people or disabled people’. Of course this only applies to people seeking employment within DHS in those various fields. The document then goes on to contain a form that can be completed and signed with a statement of consent.

That is simply one illustration of the fact that there is a variety of forms and pieces of paperwork around. There does not seem to be a single integrated mechanism for conducting police checks. As the member for Bayswater pointed out to me just a short while ago, another bill introduced into this house this morning in relation to educational matters sets out what it refers to as a similar to but different regime from that in the Working with Children Act, which is to apply in the context of education.
I think we may have reached the point where the question should be posed as to whether we should be moving towards a far better integrated system for police checking to avoid the need for multiple applications, multiple fees and expenses and multiple processing of paperwork on the part of the police force. There would be many people who want to work not only with children but with the elderly or people with disabilities when working in the human services field. This is demonstrated by the application form issued by the Department of Human Services that I referred to earlier.

There are considerable problems with delays in the undertaking of police checks for a wide variety of purposes.

I recall that last year, prior to the Commonwealth Games, there was a particular bank-up of processing by the police force and the sad situation where a number of students who were undergoing training to become nurses and needed police checks in order to undertake the practical component of their course were having great difficulty in obtaining those police checks in time. Indeed from memory some of them were not able to obtain those police checks in time, which meant that the practical training component of their course had to be delayed simply because the paperwork could not be processed by the police force.

There is substantial room for improvement in the way these matters are handled. That is not just for the sake of applicants but also for the sake of the numerous community organisations that have to be engaged in these police checks and for the sake of ensuring better protection for those vulnerable people — children, the elderly and people with disabilities — who unfortunately on occasions are preyed upon by the people who seek to associate with them.

We could provide far better protections for those people with a more integrated system.

The bill before the house has been considered by the Scrutiny of Acts and Regulations Committee, which has pointed out a number of weaknesses.

Mr Robinson interjected.

Mr CLARK — The minister at the table, the Minister for Gaming, commends the work of SARC, so I hope he will impress upon his ministerial colleague the Attorney-General the importance of taking these concerns seriously and giving them a careful and appropriate response.

SARC draws attention to the retrospective operation of two of the provisions of the legislation — namely, clauses 4 and 22 — and concludes that both of them provide beneficial clarification as to circumstances that do not amount to being engaged in child-related work and in relation to amendments to the Sentencing Act. I think SARC is generally correct in describing the amendments as beneficial in the sense that they do not operate to impose on people burdens that did not apply at the time, or apply liability retrospectively that did not apply at the time. However, I raise some query in relation to the alterations to the definition of ‘working with children’ — for example, the omission of the word ‘private’ before the word ‘tuition’, which would expand the scope of that provision and therefore the scope of circumstances in which approval is required. It may be that non-private tuition is already covered and so in practical terms that does not create a difficulty.

SARC also draws attention to two aspects of the statement of compatibility.

The first aspect to which it draws attention is an error in the statement of compatibility in its description of the offence of loitering near schools et cetera in section 60B of the Crimes Act 1958. It points out that the statement of compatibility incorrectly says that to be charged with the offence a person must have been charged with a specified sexual offence, whereas in fact section 60B of the Crimes Act provides that to be charged with that offence they must have been found guilty of a specified sexual offence.

Probably more serious is SARC’s observation that the statement of compatibility has failed to address an issue of whether or not clauses 10 and 12 of the bill are compatible with section 25(1) of the charter legislation. As SARC describes it, that subsection gives a person charged with a criminal offence the right to be presumed innocent until proven guilty according to law.

SARC goes on to point out that the European Court of Human Rights has held that an equivalent provision under the European Convention for the Protection of Human Rights and Fundamental Freedoms may be infringed not only by a judge or court but also by other public authorities. The presumption of innocence is to protect the accused against any judicial decision or other statements by state officials amounting to an assessment of the applicant’s guilt without him having previously been proved guilty according to law.

SARC then goes on to say there may well be balancing considerations which justify the provision in this instance and it has resolved to write to the Attorney-General outlining its concern. SARC’s flagging of this point, and in particular some of the European Union interpretations of equivalent provisions, highlights once again some of the great difficulties that this whole concept of a legislated charter of human rights has inflicted upon the community. It reinforces again the concerns this side of politics raised as to the wisdom of introducing such a charter.

While the propositions and conclusions expressed by the European Union authorities may as a matter of logic flow from the provisions on which they are based, what we could very well find ourselves facing is a circumstance where the law will prohibit and the courts will intervene to prevent a public official such as the Secretary of the Department of Justice from acting to stop someone who is strongly suspected on very good grounds of having engaged in paedophile conduct from working with children on the basis that, because a prosecution did not proceed or was withdrawn for some other reason, a claimed presumption of innocence should apply — and it should apply not only in the circumstance of not prejudging the outcome of a trial but in the circumstance where a public official cannot take into account the fact that someone has been charged with an offence where that charge has not proceeded to trial and conviction.

We really risk tying ourselves up in knots as a community if we reach that conclusion.

Yet that is the sort of conclusion a combination of legislative changes and judicial interpretation can end up imposing on the community.

The government could turn around and say it is not a problem because it can go ahead and legislate anyway, and if it likes it can depart from the charter. If that is the path we are going down, you ask yourself why on earth we are bothering to have a legislated charter in the first place. Why do we then have the government putting its head in the sand when it comes to the statement of compatibility, instead of saying if we follow the logic of the legislation and the European Union precedent, we should flag this as a violation of our charter and then go on and justify it? But no, it goes into denial so there is no violation of the charter in the first place. This is not just an academic, intellectual exercise for the Parliament and bureaucrats in writing statements of compatibility. At first instance it has, as we previously warned, the potential to take up enormous amounts of court time and public expense.

Even more seriously it has the risk that judicial decisions will end up meaning that people who really should not be working with children or other vulnerable persons in the community are authorised to do so and cannot be stopped by public officials from doing so because of some alleged violation of a charter, which was never intended by Parliament in the first place. The Scrutiny of Acts and Regulations Committee has done this Parliament and hopefully the community a good service by drawing attention to this issue. It needs to be taken as evidence that the charter is not working and that we should not tie ourselves up in knots as a result of it.

In terms of the provisions in the legislation I also draw attention to what appears to me to be a possible error in one of the amendments made by the bill. It is in clause 3, which amends section 3 of the act. Proposed section 3(1)(a) provides:

in the definition of parent, after –Act 2005– insert –but does not include a foster carer–;

On my reading of the principal act, the definition of ‘parent’ in relation to a child has the same meaning as it does in the Children and Young Persons Act 1989. If my reading is correct, the reference in that clause to 2005 should be a reference to 1989. If that is correct it may require a house amendment to remedy that issue.

More importantly, however, I want to conclude my assessment of this legislation by drawing attention to one of the major failures in the existing regime which the bill has not addressed. The legislation does not cover what happens when a person who has been issued with an authority to work with children subsequently has that authority revoked — for example, where they are charged with or found guilty of an offence.

The concern is that there is no effective mechanism in place to ensure that the various organisations with which a person who has a working-with-children authority may be working are actually notified that the authority to work with children has been revoked. Therefore, they do not have drawn to their attention the fact that the person concerned may well be a risk while working with children in that organisation’s care.

It is typical of the lack of realism and lack of practical consideration in the way that this legislation has been structured that it relies upon the alleged offender to notify the various organisations with whom they are working that there has been a change in circumstances. There is no mechanism by which the department itself is proactive in protecting children by making sure that those various organisations are notified. This becomes quite striking when you examine the section of the Department of Justice website that relates to working with children. The website makes the point that:

WWC checks are valid for five years, unless a relevant change in circumstances results in a negative notice being issued before the expiry date.

It goes on to assert that:

While your working-with-children (WWC) check is valid, the Department of Justice will be notified by Victoria Police of any new relevant offences that WWC check card-holders are charged with, convicted of or found guilty of. The department is also advised of any relevant new findings made against a person currently registered with the Victorian Institute of Teaching.
It seems pretty clear that there is no proactive program by the department to follow that notification through. The opposition understands from the briefing provided by the department that notification may be made to the one organisation in relation to whom the check was originally sought, and presumably that is the body that was specified when the original application for the police check was made. But of course once the police check has been done and the authorisation to work with children has been issued, the person holding that authorisation can go around to a whole range of other community organisations and use it to get permission to work with children there.

It is the failure to have any mechanism to notify those other organisations that is a cause for concern.

Another page of the website, headed ‘Relevant change in circumstance’, says:

If you hold an assessment notice and working-with-children (WWC) check card you must inform your employer, agency or volunteer organisation (where relevant) and the Department of Justice in writing within seven days if you have a relevant change in circumstances. For example, if you are a card-holder or applicant and have been charged or found guilty of a new relevant offence.
In other words, the department is putting the onus on the apparent offender to fess up to everybody else.

I would have thought that if a paedophile had somehow slipped under the net or someone who had not been charged is subsequently charged or convicted of a child sex offence, it is hardly likely that they are going to be proactive in going around and fessing up to all the other organisations they have managed to infiltrate. The department, on another page related to check status, says:

People who have passed the working-with-children (WWC) check are subject to ongoing checking.
It goes on to say that there could be a reassessment that:

… could potentially result in the person having their assessment notice and check card revoked …

Further it says:

It is recommended that prospective employers, agencies, volunteer organisations, parents and others use the check status online inquiry form to confirm either the progress of a WWC check application or the validity or authenticity of a WWC check card before engaging a person in ‘child-related work’. This facility can also be used at any other time considered necessary.
Again, it is clear that the onus is put on all the organisations concerned to proactively conduct checks, and it is an enormous task to have to check the status of all the different volunteers and/or staff on the books from time to time.

The bizarre aspect of this is that there is on the website the ability to go to a page headed ‘Check status’ where it is possible to check the status of an application or of a working-with-children assessment notice or card online.

As far as I can tell, with that inquiry page anybody can lodge an application or receipt number or an assessment notice or card number, together with the surname of the person concerned, and submit that inquiry electronically and be provided with, as the website says:

… a brief message … advising of the status of the application or WWC check card. The message does not contain any additional information about the individual, such as address details or criminal record information.
It seems that the department has considered it appropriate to allow people to find out that information online, and that seems a reasonable conclusion to reach.

It has obviously decided that there are no privacy objections to that approach, so the question has to be asked: why is there not a provision whereby organisations which have taken on a volunteer or staff member who needs a working-with-children card can lodge the details in relation to that person online so that if there is any change in status it does not require the organisation to be constantly going back to the online webpage and checking, and that instead the system will generate an email notification to that organisation telling it of any change in status of the check or of the application of the person concerned? That would seem to be a simple and straightforward way in which this aspect of the regime could be made a lot easier, a lot less bureaucratic and a lot more effective in protecting those whom it is designed to protect.

Overall the opposition does not oppose this bill. Most of its provisions make relatively modest improvements to the operation of the initial legislation.

But particularly given the lapse of two years since the original legislation was introduced and given our growing experience, we urge the government to give a lot more attention to making this legislative regime more effective and to better integrating it with similar police-check regimes that apply in many other contexts so that we have an integrated and effective scheme that provides the best possible protection to vulnerable people in our community, including children, those with disabilities and the elderly.